Spina v. Burlington (City), 2025 CanLII 77128

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 01, 2025

CASE NO(S).: OLT-25-000269

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Antonio Spina

Subject: Minor Variance

Description: To remove existing 1-storey dwelling and replace with a new 1-storey single detached dwelling with attached garage

Reference Number: 540-02-A-082-2024

Property Address: 261 Lakeview Avenue

Municipality/UT: Burlington/Halton Region

OLT Case No.: OLT-25-000269

OLT Case Name: Spina v. Burlington (City)

Heard: July 28, 2025, by Video Hearing

APPEARANCES:

Parties Counsel/Representative*

Antonio Spina ("Appellant" / "Applicant") Self-Represented*

City of Burlington ("City") Hannah Ruby

Memorandum of oral DECISION delivered BY STEVEN T. MASTORAS ON july 28, 2025, AND ORDER OF THE TRIBUNAL

INTRODUCTION AND REQUEST TO CONVERT TO A SETTLEMENT MATTER

1The Tribunal originally scheduled this first event as a Merit Hearing regarding an appeal ("Appeal") under s. 45(12) of the Planning Act ("Act") resulting from a decision to deny a Minor Variance application ("Application") by the Committee of Adjustment ("COA") in the City of Burlington ("City").

2As a result of recent consultations, the Parties appeared at the Hearing, on consent, requesting that the matter be converted to a Settlement proposal ("Settlement"), under Rule 12 of the Tribunal’s Rules of Practice and Procedures seeking the Tribunal’s consideration.

3Antonio Spina is self-represented ("Appellant" / "Applicant") and is seeking to replace a pre-existing, one-storey dwelling with a new one-storey detached dwelling, with an attached garage, a covered rear deck, a basement walkout including an open stairway, and the construction of a pool located in the rear yard. The property is municipally known as 261 Lakeview Avenue ("Subject Property").

BACKGROUND

4The Application, was before the COA on March 26, 2025, seeking to facilitate the proposal, with the following ten (10) variances:

1. To permit a front yard of 4.3 metres ("m") instead of the minimum required 11 m for a proposed one storey dwelling with attached garage;

2. To permit a front yard of 3 m instead of the minimum required 10.35 m (110.65 m encroachment) for a proposed roofed-over, one-storey porch including steps and roof overhang, excluding eaves and gutter;

3. To permit a south-east side yard of 1.2 m instead of the minimum required 2.304 m for a proposed one-storey dwelling with attached garage;

4. To permit a north-west side yard of 1.2 m instead of the minimum required 2.304 m for a proposed one storey dwelling with attached garage;

5. To permit a north-west side yard of 1.4 m instead of the minimum required 2.304 m for a proposed open stairway (basement walkout);

6. To permit two parking spaces per unit, two of which may be provided in an attached garage, whereas Zoning By-Law 2020 ("ZBL") permits only one parking space to be provided in an attached garage (Variance withdrawn at the COA);

7. To permit an internal unobstructed area in the private garage of 5.3 m depth x 3.0 m width x 2.0 m height, instead of the minimum internal unobstructed area of 5.5 m depth x 3.0 m width x 2.0 m height (Variance withdrawn at the COA);

8. To permit a driveway length of 4.3 m instead of the minimum required 6.0 m;

9. To permit a proposed attached garage to project 1.3 m beyond the longest portion of a wall facing a street whereas Zoning By-law 2020 does not permit an attached garage with a garage door facing a street to project beyond the longest portion of a wall facing a street and containing residential floor area on the first storey of a dwelling; and,

10. To permit a deck area of 35 metres squared ("m^2") instead of the maximum permitted 30 m² for a proposed deck over 1.2 m [in height].

5The Tribunal noted that a Planning Staff Report ("PSR") dated February 25, 2025, was submitted to the COA providing its support of all of the above noted variances, inclusive of variances #6 and #7, which were removed at the COA hearing on March 26, 2025. The PSR recommended approval with a single condition requiring a "Pre-Building Approval Application," and noted that there were no objections from the various agencies or neighbouring public, who were circulated the Application.

6As this Appeal is a de novo Hearing, the Tribunal clarified whether there were any requests for Party or Participant status and confirmed that there were no such requests. The matter then proceeded to consideration of the Settlement.

7The following information was submitted as Exhibits, and is marked below:

• Exhibit 1 – Expert Witness Statement, Curriculum Vitae, and Acknowledgement of Experts’ Duty, from Michael Barton (signed, July 14, 2025);

• Exhibit 2 – Witness Affidavit from Michael Barton containing a brief overview and Minutes of Settlement, signed on consent of the Parties (dated July 4, 2025).

THE VARIANCES

8As noted above, the Application was revised at the COA, and the current Appeal is seeking permission for a total of eight (8) Variances before the Tribunal, as outlined below:

1. To permit a front yard [setback] of 4.3 m instead of the minimum required 11 m for a proposed one storey dwelling with attached garage;

2. To permit a front yard [setback] of 3 m instead of the minimum required 10.35 m (110.65 m encroachment) for a proposed roofed-over 1-storey porch including steps and roof overhang, excluding eaves and gutter;

3. To permit a south-east side yard [setback] of 1.2 m instead of the minimum required 2.304 m for a proposed one storey dwelling with attached garage;

4. To permit a north-west side yard [setback] of 1.2 m instead of the minimum required 2.304 m for a proposed one storey dwelling with attached garage;

5. To permit a north-west side yard [setback] of 1.4 m instead of the minimum required 2.304 m for a proposed open stairway (basement walkout);

6. To permit a driveway length of 4.3 m instead of the minimum required 6.0 m;

7. To permit a proposed attached garage to project 1.3 m beyond the longest portion of a wall facing a street whereas [the ZBL] does not permit an attached garage with a garage door facing a street to project beyond the longest portion of a wall facing a street and containing residential floor area on the first storey of a dwelling; and,

8. To permit a deck area of 35 m² instead of the maximum permitted 30 m² for a proposed deck over 1.2 m high.

("Variances")

9The Tribunal also considered the terms of the Settlement and was mindful of amendment provisions pursuant to s. 45(18.1) of the Act as to how the Variances in their present form had been modified at the COA seeking approval at the time, and now before the Tribunal.

LEGISLATIVE FRAMEWORK

10An Appeal before the Tribunal pursuant to s. 45 of the Act is a hearing de novo. The Appellants bear the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely that the requested Variance:

1. Maintains the general intent and purpose of the Official Plan;

2. Maintains the general intent and purpose of the Zoning By-Law;

3. Is desirable for the appropriate development or use of the land, building or structure; and,

4. Is minor in nature.

11In addition, s. 3(5) of the Act requires the Tribunal’s Decision to be consistent with the Provincial Planning Statement 2024 ("PPS") and must also have regard to matters of Provincial interest as set out in s. 2 of the Act, as well as for the decision to deny the Variances by the COA and the information considered while making its decision, as set out in s. 2.1(1) of the Act.

THE SETTLEMENT

12The Settlement before the Tribunal is requesting that the eight Variances be allowed, individually and collectively, with the following condition that:

1. The Applicant shall submit a Pre-Building Approval Application to the satisfaction of the Director, Community Planning or their designate.

PLANNING EVIDENCE

13Michael Barton appeared before the Tribunal, in his capacity as President and Founder of MB1 Development Consulting Inc. and was duly qualified to provide expert witness opinion evidence in the area of Land Use Planning, on consent of both Parties.

14Mr. Barton confirmed that he was originally retained by the Appellant in late March 2025, and had not previously appeared before the COA in support of the Application. He also confirmed that since his engagement, the Settlement, agreed to by the Parties, is the result of discussions in the lead up to this Hearing, and that it meets the Legislative Framework requirements.

15The Tribunal accepted the testimony from Mr. Barton, without any objection from Counsel for the City, that regarding the above referenced provisions of the Act in paragraph [9], that notice of the amendment to the original application, establishing the updated Variance requests as part of the Settlement, was given and met the statutory notice provisions under s. 45(18.1) of the Act.

16Mr. Barton provided a high-level overview of the background to the matter, frequently referencing Exhibit 1, throughout his testimony.

The Subject Property and Surrounding Area

17As a somewhat irregular shaped lot, the Subject Property has a frontage of 21.92 m and then increases in width to 26.14 m, with a depth of approximately 34 m and a total lot area of 821.03 m². The Subject Property is accessed via an existing driveway along the north side of the lot, leading to a current, single-car garage.

18Mr. Barton notes that the Subject Property is within the designated "Residential-Low Density" R2.1 zone. It is immediately adjacent to the R2.4 zone which generally allows slightly more lenient/flexible requirements within the City’s Zoning By-Law No. 2020 ("ZBL").

19The surrounding area contains a total of twelve, one and two-storey dwelling lots abutting Tuck Creek. The Subject Property is within the Conservation Halton ("CH") Regulated Ares, with the rear-yard directly within the "Stable Top of Bank Hazard" and "Floodplain Hazard."

PPS 2024 AND SECTION 2 OF THE ACT

20In the opinion of Mr. Barton, the Variances before the Tribunal maintain consistency with the PPS 2024 and have appropriate regard for s. 2 of the Act.

21Regarding the PPS 2024, Mr. Barton generally stated that the Variances:

• 2.2.1 – support the principle of providing a range of housing, permitting, and facilitating the promotion of new housing with efficient land use, resources, infrastructure and public service facilities and transportation/transit-supportive development;

• 2.3 – reflect policies for "Settlement Areas and Settlement Area Boundary Expansions;"

• 2.3.1.2 – also generally reflect policies for Settlement Areas encouraging a mix of land uses and densities with similar objectives noted above; and,

• 4.1, 5.2.2 and 5.2.3.3 – demonstrate particular attention to Natural Heritage policies, which is expanded upon in greater detail within the Witness Statement (Exhibit 1, paras.127, 128 and 129).

22Mr. Barton emphasized the importance of how the Natural Heritage feature elements had a defining role in the design of the new residential dwelling, in that the Applicant ensured that all setbacks respected conditions adjacent to Tuck Creek.

23Regarding s. 2 of the Act, Mr. Barton expanded further through written submissions (Exhibit 1, para. 123) with a focus on the relevant/applicable sections including:

(a) the protection of ecological systems, including natural areas, features, and functions;

(c) the conservation and management of natural resources and the mineral resource base;

(h) the orderly development of safe and healthy communities;

(m) the co-ordination of planning activities of public bodies;

(n) the resolution of planning conflicts involving public and private interests;

(o) the protection of public health and safety;

(p) the appropriate location of growth and development;

(q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians;

(r) the promotion of built form that,

(i) is well-designed,

(ii) encourages a sense of place, and

(iii) provides for public spaces that are of high quality, safe, accessible, attractive, and vibrant;

THE FOUR TESTS

24At a high level, Mr. Barton outlined his opinions regarding the statutory ‘four tests’, which were consistent with his very detailed Witness Statement (Exhibit 1), and is generally summarized below as follows:

Variances Maintain the General Intent and Purpose of the Official Plan

25Mr. Barton opined that the Proposal is fully within the "Built Boundary" and designated "Urban Area" in the Region of Halton Official Plan.

26The City of Burlington Official Plans of 1997 ("COP-1997") and the more recent 2020 version ("COP-2020"), both remain relevant due to overlapping appeals. Mr. Barton confirmed that the Subject Property is designated "Residential-Low Density", in the COP-1997 and remains in effect.

27Regarding both the COP-1997 and COP-2020, Mr. Barton reiterated that:

This designation permits single-detached and semi-detached housing units with a density to a maximum of 25 units per net hectare. Other forms of ground-oriented housing units with a density to a maximum of 25 units per net hectare may be permitted, provided that these forms are compatible with the scale, urban design and community features of the neighbourhood. Schedule B also confirms that no portion of the Subject Property or surrounding area is designated "Greenlands" or "Natural Heritage System".

28Therefore, Mr. Barton concluded that all the Variances, individually and collectively, meet the first ‘test’ and maintain the general intent and purpose of the applicable Official Plans.

Variances Maintain the General Intent and Purpose of the City of Burlington Zoning By-law No. 2020

29Mr. Barton separately addressed Variances 1, 2, and 6, and Variances 3, 4 and 5, as groupings, noting that each Variance maintains the general intent and purpose of the ZBL.

30Mr. Barton expanded on his opinion with regard to Variance 7 (Garage), noting that the Proposal is designed to avoid an overly dominating garage visual, at street-level (Exhibit 1, pg.21).

31Additionally, regarding Variance 8 (Rear Deck), Mr. Barton emphasized the care that was taken in the design of the Proposal to mitigate adverse privacy impacts with a central location at the rear of the lot. Mr. Barton emphasized that this design choice is complemented by the tree buffers that already exist, and that the proposed garden house will essentially not be visible from the public realm, or neighbouring north/south properties (Exhibit 1, pg.22).

Are the Variances Minor in Nature?

32Mr. Barton followed up in a similarly very detailed fashion, grouping Variances 1, 2, and 6, and Variances 3, 4 and 5 (Exhibit 1, D.3, pages 22-23). Mr. Barton confirmed that based on his analysis, the single-storey massing elements mitigate any adverse impacts to surrounding properties, with reasonable surrounding setbacks that maintain the general character of the area. Mr. Barton reiterated that the as-of-right 10 m dwelling height was not pursued in the Proposal, and noted that the driveway, garage, and front porch are predominantly screened with existing natural tree cover along north and south property lines.

33Furthermore, regarding Variances 7 (Garage) and 8 (Rear Deck), he noted that Garage setbacks respect the front yard through a reduced "visual prominence relative to the balance of the dwelling." He further emphasized that the Rear Deck would avoid any adverse impact on neighbouring properties and is configured carefully to avoid any over-extension into the rear yard. Greater details are outlined in the Witness Statement (Exhibit 1, D.3, pages 24-25).

Are the Variances Desirable for the Appropriate Development or Use of the Land?

34Mr. Barton opined that Variances 1 through 8, individually and collectively: avoid hazard areas; maintain a tasteful single-storey and well-designed built form; are compatible with the surrounding neighbourhood; maintain reasonable distance in relation to adjacent properties; and sustain the existing tree cover along north/south property lines. He asserted that the Garage and Rear Deck designs also respect spatial separation and are no closer to hazard areas.

35Mr. Barton briefly, but consistently concluded that all eight Variances, individually and cumulatively, meet the ‘four tests’ under s. 45(1) of the Act.

ANALYSIS AND CONCLUSION

36Based on the uncontroverted evidence of the Witness, which reflects the efforts between both Parties through this Settlement, the Tribunal finds that the Variances, individually and collectively, are consistent with the PPS and have appropriate regard for s. 2 of the Act.

37Supported by the PSR, the proposed Variances meet the statutory four tests. The Tribunal finds that they maintain the general intent and purpose of the OP; maintain the general intent and purpose of the ZBL; are desirable for the appropriate development or use of the land, building, or structure; and are minor in nature. Appropriate regard has also been given to the decision of the COA, as required under the Act.

38The Parties were also commended on their efforts in achieving the Settlement.

ORDER

39THE TRIBUNAL ORDERS that having been asked to consider an application which has been amended from the original application, and the Tribunal having determined as provided for in subsections 45(18.1) of the Planning Act that no further notice is required; and,

40THE TRIBUNAL FURTHER ORDERS that the Appeal by Antonio Spina is allowed in part and the Variances to the City of Burlington Zoning By-law No. 2020, are authorized, with the following Condition:

1. The Applicant shall submit a Pre-Building Approval application to the satisfaction of the Director, Community Planning or their designate.

"Steven T. Mastoras"

STEVEN T. MASTORAS

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal ("Tribunal"). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.